November 20, 2012 Articles

Battle for Vindication of Statutory Rights Post-Concepcion

Class actions issues are hot, and if the Supreme Court's docket this term is any indication, the trend shows no signs of cooling off.

By Scott T. Schutte, Thomas J. Sullivan, Gregory T. Fouts, and Ezra D. Church

Class actions issues are hot, and if the U.S. Supreme Court’s docket this term is any indication, the trend shows no signs of cooling off. Some of this term’s most significant cases will address issues arising from the Court’s 2011 decisions, including AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), in which the Court found that the Federal Arbitration Act (FAA) invalidated a California rule that prohibited mandatory arbitration clauses unless the clauses also permitted class actions. It should also be noted, however, that the Court has denied several petitions for certiorari that might have addressed the impact of Concepcion. E.g., Buffington v. SunTrust Banks, Inc.; Hough v. Regions Fin. Corp.; Mo. Title Loans, Inc. v. Brewer.

Many courts have interpreted the impact of Concepcion on arbitration agreements. Perhaps the biggest issue arising out of Concepcion—an issue that may well receive attention from the Supreme Court soon—is whether courts can refuse to enforce a class action waiver where plaintiffs claim that a class action is the only way they can vindicate their state or federal statutory rights. Many plaintiffs have raised this “vindication of rights” argument in opposition to motions to compel arbitration, and there is now a circuit split on the issue.

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